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sel; (3) whether the district court erred in not allowing an evidentiary
hearing on claims of ineffective assistance of appellate counsel; (4)
whether the district court erred in determining that the state courts'
denial of Harris's motion to suppress his confession constituted a reasonable application of Supreme Court precedent; and (5) whether the
district court erred in treating several issues not raised on direct
appeal as procedurally defaulted.
II.
Before we address Harris's claims, we must delineate the applicable standards of review for legal questions addressed by the state
courts. Because Harris filed his federal habeas petition after enactment of the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), the AEDPA's deferential standards of review apply to the
claims already adjudicated on the merits by the state courts.2 The
AEDPA provides:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the
adjudication of the claim -(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C.A. 2254(d) (West Supp. 1999). We recently interpreted
subsection (1) to prohibit the issuance of the writ unless (a) the state
court decision is in "square conflict" with Supreme Court precedent
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2 The writ was filed on July 11, 1997, after April 26, 1996, the effective
date of the AEDPA. See Lindh v. Murphy, 117 S. Ct. 2059 (1997).
7
that the refusal to consider facts contained in the 1996 MAR was supported by a consistent application of 15A-1420(b)(1). The state procedural rule is therefore adequate.
Having concluded that the evidence presented to the federal habeas
court was not submitted to the state courts, and thus the state courts
declined review on the merits, we must now determine whether a fundamental miscarriage of justice or cause and prejudice excuse the
omission. "Cause exists . . . where the factual or legal basis for the
claim was not reasonably available to the claimant at the time of the
state proceeding." Roach v. Angelone, 1999 WL 270014, *10 (4th Cir.
May 4, 1999). Harris makes no argument that he could not have
obtained the affidavits prior to his state MAR proceeding, and the reason is apparent: he and his former counsel were the affiants. Furthermore, Harris makes no argument that failing to consider the affidavits
would result in a fundamental miscarriage of justice. Accordingly, we
conclude that the district court properly refused to consider the supporting affidavits.
B.
Harris next contends that he "was entitled to an evidentiary hearing
on his claims of ineffective assistance of counsel at trial." (Appellant's Br. at 2.) According to Harris, the district court should have
embarked upon a factual investigation of his trial counsels' performance because his federal habeas petition made sufficient allegations
of substandard performance that resulted in prejudice, thus satisfying
the standard for constitutionally ineffective assistance of counsel
under Strickland v. Washington, 466 U.S. 668 (1984). Specifically,
Harris contends that his trial counsel provided ineffective assistance
for the following reasons: (1) counsels' trial strategy was doomed to
fail as a matter of North Carolina law; (2) counsel ineptly examined
the victim's treating physician; (3) counsel failed to object to the
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believed that the state courts had allowed exceptions to 15A1420(b)(1), we have held that state courts need not show an unwavering
adherence to a state procedural rule to demonstrate that it is firmly established. Cf. Weeks v. Angelone, 1999 WL 288504 at *19 (4th Cir. May 10,
1999).
11
Supreme Court. See id. Harris also made other claims of ineffective
assistance of counsel, but failed to support them with any evidence.
See id. In its decision denying the claims, the North Carolina Supreme
Court stated that Harris could make claims of ineffectiveness of counsel in a subsequent MAR and submit evidence. See id. Harris's postconviction counsel followed at least part of this advice.
In his 1996 MAR, Harris again argued, as he does to this Court,
that his trial counsel were ineffective, at least in part, because of poor
cooperation and planning, which had a particularly adverse affect on
trial strategy and the use of a psychological expert retained by the
defense. The out-of-court activities of Harris's trial counsel are not
readily ascertainable from trial records and, under North Carolina
law, the allegations must be supported by documentary evidence such
as an affidavit. See N.C. Gen. Stat. 15A-1420(b)(1) ("A motion for
appropriate relief made after the entry of judgment must be supported
by affidavit or other documentary evidence if based upon the existence or occurrence of facts which are not ascertainable from the
records and any transcript of the case or which are not within the
knowledge of the judge who hears the motion."). In its order denying
the 1996 MAR, the superior court noted that Harris"had not presented any additional evidence supported by affidavit which would
demonstrate ineffective assistance of [trial] counsel." (J.A. at 166
(internal quotation marks omitted).) In other words, Harris had not
presented supporting evidence as the North Carolina Supreme Court
suggested on direct appeal or as required by statute.
Because Harris did not submit the necessary factual support for
these claims to the state courts, we find that he failed "to develop the
factual basis of a claim in State court proceedings."7 28 U.S.C.A.
2254(e)(2). Therefore, a federal court may not entertain an evidentiary hearing on these matters unless Harris can establish (1) either that
the claim relies on a new rule of constitutional law retroactively
applied or that the claim relies on facts that could not have been discovered through due diligence, and (2) that the underlying facts are
sufficient to establish by clear and convincing evidence that absent
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7 If the facts had been fully developed in the state court, then there
would, of course, be no reason to hold an evidentiary hearing at the district court.
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D.
Harris next claims that the district court erred in finding that the
admission of his confession did not violate his Fifth Amendment
rights as safeguarded through Miranda v. Arizona , 384 U.S. 436
(1966), and its progeny. Because this claim was adjudicated on the
merits by the state courts, we review their holding to determine only
whether it was contrary to established Supreme Court precedent, was
an unreasonable derivation of controlling Supreme Court precedent,
or an unreasonable application of Supreme Court precedent to a new
set of facts. See 28 U.S.C.A. 2254(d); Fitzgerald v. Greene, 150
F.3d 357, 362 (4th Cir. 1998).
When Harris was first interviewed by law enforcement authorities,
he was apprised of his Miranda rights and exercised them by declining further discussion absent the presence of counsel. See Harris, 449
S.E.2d at 374. After talking with his brother approximately twelve
hours later, Harris, on his own initiative, requested to speak with law
enforcement authorities again. See id. After being brought to the sheriff's office pursuant to his own request, Harris began making a confession. The sheriff interrupted him and again reminded him of his
Miranda rights, although the sheriff failed to inform Harris that he
could discontinue questioning at any time and also did not tell Harris
that he could have an attorney immediately. Harris contends that the
voluntary reinitiation of communication with law enforcement absent
full and fresh Miranda warnings and the immediate availability of an
attorney did not satisfy the standards under Miranda and Edwards v.
Arizona, 451 U.S. 477 (1981). Instead, Harris contends that absent a
reinstruction regarding his right to discontinue questioning at any
time and the right to have an attorney's immediate presence, the confession could not have been voluntary under Supreme Court precedent.
The North Carolina Supreme Court addressed this issue in its
review of the case and stated:
There is no reason to believe the defendant, having been
fully and properly advised of his Miranda rights approximately twelve hours before his interview with Sheriff
Brown, had forgotten them. Certainly he should have known
19
facts and circumstances surrounding the case, including the background, experience, and conduct of the accused." Id. (internal quotation marks omitted). Thus, whether Harris's Fifth Amendment rights
were violated depends upon whether he was informed of his rights in
accordance with Miranda, whether he withdrew any assertion of those
rights by voluntarily initiating a conversation with law enforcement,
and whether he waived his rights in light of the totality of the circumstances.
In this case, there is no debate as to whether Harris received the
requisite warnings under Miranda on the same day he confessed.
Moreover, there is no dispute that it was Harris, and not law enforcement, that initiated the discussion following his earlier request to have
counsel present. Finally, Harris was again informed of his Miranda
rights only twelve hours after originally hearing them and exercising
them.10 Under these circumstances, Harris clearly made a knowing
and intelligent waiver of his Fifth Amendment right to be free from
compelled self-incrimination. In our judgment, these occurrences evidence that the circumstances of Harris's confession did not violate
Miranda or its progeny. The North Carolina Supreme Court's judgment on this point was well within the narrow bounds of review mandated by 2254(d), and we affirm the district court on this point.
E.
Harris finally claims that the district court erred in treating several
issues as procedurally defaulted. Specifically, Harris asserts that the
following claims were improperly treated as procedurally defaulted:
(1) that the service of the trial judge's secretary on the jury deprived
Harris of his Sixth Amendment right to an impartial jury; (2) that Harris's absence at a videotaped examination of the victim's treating physician violated Harris's Confrontation Clause rights; and (3) that his
trial counsel was constitutionally ineffective for failing to raise a
timely claim that Harris's Double Jeopardy Clause rights were vio_________________________________________________________________
10 The mere passage of time between the original Miranda warnings
and a confession generally does not taint a confession. See United States
v. Frankson, 83 F.3d 79, 83 (4th Cir. 1996). Therefore, even if the sheriff
had not repeated the Miranda warnings, there would not be any violation
of Harris's Fifth Amendment rights.
21
lated because a new jury was empaneled for the sentencing portion of
the trial.
This Court may not review claims in a federal habeas petition if
they have been defaulted under an independent and adequate state
procedural rule as applied by the state courts unless the habeas petitioner can demonstrate cause for the default and prejudice resulting
therefrom, or demonstrate that a failure to consider the claims will
result in a fundamental miscarriage of justice. See Coleman v.
Thompson, 501 U.S. 722, 731-32, 750 (1991). A state rule is adequate
if it is regularly or consistently applied by the state court, see Johnson
v. Mississippi, 486 U.S. 578, 587 (1988), and is independent if it does
not "depend[ ] on a federal constitutional ruling," Ake v. Oklahoma,
470 U.S. 68, 75 (1985).
The district court determined that these issues were procedurally
defaulted based upon the superior court's finding during the 1996
MAR proceeding that the issues were barred from review under
15A-1419(a)(3) (Michie 1997). Section 15A-1419(a)(3) states that
a MAR may be denied if "[u]pon a previous appeal the defendant was
in a position to adequately raise the ground or issue underlying the
present motion but did not do so." N.C. Gen. Stat. 15A-1419(a)(3).
It is undisputed that on direct appeal Harris failed to raise the issue
of the superior court judge's secretary's service on the trial jury or the
fact that Harris did not attend the out-of-court examination of the victim's physician.
We have previously determined 15A-1419(a)(3) to be an adequate and independent ground, and Harris does not argue otherwise.
See Williams v. French, 146 F.3d 203, 210 (4th Cir. 1998), cert.
denied, 119 S. Ct. 1061 (1999). Instead, Harris argues that ineffective
assistance of counsel on appeal constitutes sufficient cause to excuse
the default. Although he does not say, we presume that Harris claims
the resulting prejudice to be the loss of winning issues on appeal.
Because we conclude that two of Harris's claims were properly
treated as procedurally defaulted, but the third was not, we address
this issue in two parts.
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1.
We first address Harris's position that this Court should review the
merits of his Sixth Amendment right to an impartial jury claim and
his Confrontation Clause claim because ineffective assistance of his
appellate counsel constitutes adequate cause to excuse his failure to
raise the claims on direct appeal.
Constitutionally ineffective counsel is among the recognized factors for establishing cause for default. See Williams, 146 F.3d at 20910. Before ineffective assistance of counsel can be presented as cause
for procedural default in a federal habeas proceeding, however, the
ineffectiveness claim must first be presented to the state courts as an
independent claim. See id. at 210 n.9. If the ineffective-assistance-ofcounsel claim is properly presented to the state courts, then it can be
evaluated as a source of cause for procedural default in a federal
habeas proceeding. In order to constitute cause for procedural default,
counsel's conduct must have constituted ineffective assistance of
counsel under the United States Constitution -- i.e., the Strickland
standard. See id. at 210. Upon a finding that the counsel's representation is in fact constitutionally ineffective, then that conduct is imputed
to the state and it can establish causation for the procedural default.
See id. Because Harris raised the ineffectiveness-of-appellate-counsel
claims before the state courts, we may evaluate them as a potential
source of cause for procedural default.
Whether Harris's counsel were in fact constitutionally ineffective
on appeal, depends upon an evaluation of their conduct in accordance
with the Strickland standard. As we stated in part C., however, we
have determined that appellate counsel were not ineffective for failing
to present claims for violations of Harris's Confrontation Clause
rights or the Sixth Amendment right to an impartial jury. Because we
have concluded that Harris's appellate counsel were not constitutionally ineffective, ineffective assistance of counsel cannot constitute
sufficient cause for procedural default, and we must affirm the grant
of summary judgment to the State on this issue. 11
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11 We also note that Harris's substantive claims do not merit relief. Neither his claim that the service of the trial judge's secretary on the jury
23
2.
We now come to Harris's claim that his allegation of ineffective
assistance of trial counsel for failing to object to the empaneling of
a new jury during the sentencing phase of the trial should not have
been treated by the district court as procedurally defaulted.
We agree, but not for the reason advanced by Harris. As both parties inexplicably fail to mention, it is improper to treat an ineffectiveassistance-of-trial-counsel claim as procedurally defaulted under
15A-1419(a)(3) because North Carolina does not require
ineffective-assistance-of-counsel claims to be raised on direct appeal.
See State v. Sneed, 201 S.E.2d 867, 871 (N.C. 1974) ("Our research
discloses that the majority of the decisions relating to the alleged failure of counsel to render effective representation arises out of postconviction proceedings."); State v. Dockery , 336 S.E.2d 719, 721
(N.C. App. 1985) ("The accepted practice is to raise claims of ineffective assistance of counsel in post-conviction proceedings, rather than
direct appeal."). Because this claim was improperly treated as procedurally defaulted by the district court, we will review its merits.
Before embarking on a review of the merits, we note that the superior court alternatively held that "the alleged deficiencies in counsel's
representation did not prejudice the defendant." (J.A. at 167.) Because
this claim was adjudicated on the merits by the state courts, we apply
the standards of review contained in the AEDPA and review the state
court holding only to determine whether it was contrary to established
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deprived him of his Sixth Amendment right to an impartial jury, nor his
claim that the videotaped examination of the victim's treating physician
violated his Confrontation Clause rights, violated Harris's constitutional
rights. Based upon our review of the facts and the applicable law, we
determine that Harris effectively waived his Confrontation Clause right
to be present at the physician's examination under United States v.
Gagnon, 470 U.S. 522, 526-27 (1985), and in any event, he showed no
prejudice arising from his absence. Furthermore, the service of the superior court judge's secretary was not a violation of Harris's right to an
impartial jury, especially in light of the significant safeguards implemented by the superior court to avoid any impropriety.
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Supreme Court precedent, was an unreasonable derivation of controlling Supreme Court precedent, or an unreasonable application of
Supreme Court precedent to a new set of facts. See 28 U.S.C.A.
2254(d); Fitzgerald v. Greene, 150 F.3d 357, 362 (4th Cir. 1998).
To determine whether a trial counsel's performance is constitutionally ineffective, we look to the standards announced by the Supreme
Court in Strickland. Strickland provides that a petitioner must demonstrate both that his trial counsel's representation was deficient and that
he was prejudiced thereby. See Strickland, 466 U.S. at 687; Howard
v. Moore, 131 F.3d 399, 421 (4th Cir. 1997) (en banc), cert. denied,
119 S. Ct. 108 (1998). In making this determination, "a court must
indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance." Strickland, 466
U.S. at 689. To demonstrate prejudice, "[t]he defendant must show
that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694.
Harris claims his trial counsel were ineffective because they failed
to object to the superior court's empaneling of a new jury to serve in
the sentencing phase of the trial. He urges that this failure was a violation of his right to be free from double jeopardy under both the North
Carolina and United States constitutions. Harris first cites North Carolina case law and statutory provisions to support his position. See
N.C. Gen. Stat. 15A-2000(a)(2) (Michie 1997); State v. Lechat, 343
S.E.2d 872 (N.C. 1986); State v. Bondurant, 309 S.E.2d 170 (N.C.
1983); State v. Crocker, 80 S.E.2d 243 (N.C. 1954). A review of this
authority, however, reveals that the superior court's actions at trial
were likely proper under North Carolina law.12 Bondurant stands for
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12 Ordinarily, we would not analyze the substantive application of state
law in a habeas petition. See, e.g., Estelle v. McGuire, 502 U.S. 62, 6768 (1991) ("[I]t is not the province of a federal habeas court to reexamine
state-court determinations on state-law questions."). This claim, however, is couched in terms of ineffective assistance of trial counsel and
because it involves the omission of a challenge in the state courts, the
superior court did not have an opportunity to address fully the underlying
issue at trial. We, therefore, must address the substance of the state law
to assess the performance of counsel.
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